Henderson Franklin’s Employment Law and Workers’ Compensation attorneys will host the 27th Annual HR Law & Solutions on Friday, March 29, 2019 at the Sanibel Harbour Marriott Resort & Spa. Florida Board Certified Civil Trial Expert Robert Shearman will moderate this annual seminar designed to update and educate business owners, managers, human resource professionals and in-house counsel on legal issues impacting the workplace.

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Guest Speaker Steve Gilliland

Make plans to attend the largest employment law conference in Southwest Florida, HR Law & Solutions, now in its 26th year! Henderson Franklin’s Employment Law and Workers’ Compensation attorneys will return to Sanibel Harbour Marriott Resort & Spa in Fort Myers on Tuesday, March 6, 2018,

Guest post by Summer Associate Kristen Schalter

Football players took another hit in Tallahassee (pun intended) – this time in the workers’ compensation arena in the recent decision in Arena Football League v. Bishop, 2017 WL 2438335 (Fla. 1st DCA June 6, 2017). Bryon Bishop previously played for the Orlando Predators for one season and later wanted to rejoin the team. While participating in the Predators’ two-day tryouts in 2013, he suffered an on-field injury.

AFL Contract

Prior to participating in a tryout, a prospective Arena Football League (“AFL”) player is required to sign a contract.  Interestingly, the AFL contracts with players differently than the NFL. In the NFL, contracts are between individual teams and individual players, while in the AFL contracts are between the league itself and individual players.


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Human resource keyboardMake plans now to attend the biggest employment law conference in Southwest Florida, HR Law & Solutions, now in its 25th year! Henderson Franklin’s Employment Law and Workers’ Compensation attorneys will return to Sanibel Harbour Marriott Resort & Spa in Fort Myers on Friday, March 10, 2017, for a fun-filled day of education.

Guest post by Michael McCabe, Esquirehurted hand and work injury claim form

Earlier today, the Florida Supreme Court rendered its opinion in the workers’ compensation case Westphal v. City of St. Petersburg. The Court held the 104 week limitation of Temporary Total Disability (“TTD”) benefits in section 440.15(2)(a), Florida Statutes, to be in violation of an injured workers’ constitutional right to access to courts. The remedy reached by the court is to “revert” to a pre-1994 version of 440.15(2)(a), which provided payment of up to 260 weeks (5 years) of TTD benefits, before an injured worker reaches what is referred to as Statutory Maximum Medical Improvement (“MMI”).

Unique Case

While the impact of the Court’s opinion will be broad, the facts of Westphal were quite rare. An injured worker had been paid TTD benefits for 104 weeks, was still on an off-work status, and the workers’ compensation physician refused to release the claimant to return to work or place the claimant at MMI, until additional surgery was performed.


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Guest post by Workers’ Compensation Attorney Michael McCabe:

On April 28, 2016, the Florida Supreme Court entered its long-awaited decision in the case of Marvin Castellanos v. Next Door Company, et al. The Court held that the statutory limitations on Workers’ Compensation attorney’s fees created by the Florida Legislature violated the Due Process clause of both the Florida and United States Constitutions. Rather than a limited fee based on a percentage of the benefits actually secured, attorneys representing injured workers may now be awarded an hourly fee for time and effort reasonably spent litigating Workers’ Compensation benefits.

Out with the Old (Formula)

In 2009, the Florida Legislature amended Florida Statutes Section 440.34 to create an irrebuttable presumption that only allowed a judge to award a statutory guideline fee in a Workers’ Compensation case, instead of giving a judge the discretion to award either the statutory guideline fee or an hourly fee. This “guideline” resulted in the following formula that limited the amount an injured worker’s attorney could be paid to:

  • a fee based on 20% of the first $5,000 of the amount of benefits secured by the attorney;
  • 15% of the next $5,000.00 of the amount of benefits secured;
  • 10% of the remaining amount of benefits secured to be provided during the first 10 years after the date the claim is filed; and,
  • 5% of the benefits secured after 10 years.

In Castellanos, this statutory formula resulted in an attorney’s fee of $822.70, despite the fact the worker’s attorney reasonably spent 107.2 hours litigating a complex case to secure benefits for his client. This made the effective rate for the attorney $1.53 per hour. The First District Court of Appeal affirmed the result, noting it was constrained to abide by the statutory formula, but it certified the question to the Florida Supreme Court.

In considering the constitutionality of the statutory attorney fee limitation, the Florida Supreme Court addressed:

  1. whether the Legislature “was reasonably aroused by the possibility of an abuse which it legitimately desired to avoid;”
  2. whether there was a reasonable basis for a conclusion that the statute would protect against the abuse’s occurrence; and
  3. whether the expense and other difficulties of individual determinations on attorneys’ fees “justify the inherent imprecision of a conclusive presumption against an award of fees to an injured worker’s attorney,” that would not be limited to the statutory formula.

Analysis of the Decision


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10-12-2015 3-48-06 PMWhether you have 10 or 10,000 employees, running a business can be a challenge. Making decisions based on strategic reasoning is critical to the success and longevity of any company. How can members of the c-suite, as well as the small business owner, gain helpful insight into the boardroom and, at the same time, try and avoid the courtroom?

We cordially invite you and your top-level managers to join members of Henderson Franklin’s legal team on Tuesday, November 17, 2015 as they present the Southwest Florida C-Suite Summit at Sanibel Harbour Marriott Resort & Spa. Topics and speakers include:

The Recipe for Business Longevity presented by Attorneys Guy Whitesman (Chair, Business and Tax Department), Eric Gurgold (Chair, Estate Planning and Administration Department) and Mark Nieds (Intellectual Property Group). They will outline proven techniques and best practices to preserve, protect, and perpetuate your business. One size does not fit all. The panel will explore avenues to successful business perpetuation, liquidity events and the preservation of wealth.

The Comeback Kid: Southwest Florida’s Ongoing Economic Recovery. Attorneys Denis Noah (Chairman of the Horizon Council) and Russell Schropp (Horizon Council Task Force Chair) will provide a look at the state of Southwest Florida’s economic recovery – from a lawyer’s perspective!
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hurted hand and work injury claim formAttorneys David Roos and Michael McCabe met with several attendees at the HR Law & Solutions seminar last month, in a question and answer session to address specific issues from a workers’ compensation perspective. A major focus of the questions centered around the extent to which HR policies, practices, and procedures would be affected by a pending workers’ compensation claim. Questions also addressed how much control an HR manager or employer has over issues that would normally result in disciplinary actions, including termination.

Have Consistent Policies and Procedures

David and Mike explained that an employer retains the same level of control over employee conduct regardless of a pending workers’ compensation claim, and that an employer could exert that control through consistent implementation of HR practices and procedures. According to David and Mike, this would eliminate potentially expensive employment law actions such as retaliatory discharge. HR professionals need to maintain the same practices and procedures that apply to all employees, and need to keep in close contact with their insurance company adjuster and defense attorney (if one has been retained) to make sure that the employer is aware of how an HR decision affects the pending workers’ compensation claim. Understanding how HR decisions, such as termination, affect the underlying injury claim allows the employer to understand how those decisions will increase (or decrease) the costs of a workers’ compensation claim – and ultimately future insurance premium increases.

When Does Termination Affect Workers’ Compensation Benefits?
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